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Patent enforcement through the courts in the Czech Republic

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Enforcement through the courts

At trialWhat level of expertise can a patent owner expect from the courts?

The Prague Municipal Court has had jurisdiction over all patent infringement cases since 2008. Over the last six years, judges have thus developed a certain level of expertise in IP matters. That said, the majority of litigated cases are trademark or design related. As far as patents are concerned, the courts have not yet established particular expertise and, given the non-technical background of many judges, they tend to rely heavily on court-appointed experts when deciding patent cases.

Are cases decided by one judge, a panel of judges or a jury?

Cases are decided by a three-judge panel.

If jury trials do exist, what is the process for deciding whether a case should be put to a jury?

Jury trials do not exist in the Czech Republic.

What role can and do expert witnesses play in proceedings?

Experts are used in the vast majority of patent cases. Each party typically produces its own expert report, after which the judges – who have no technical background themselves – appoint a neutral technical expert to provide an opinion. Written expert reports are sometimes sufficient, but experts can also be questioned in person.

Does your jurisdiction apply a doctrine of equivalents and, if so, how?

The doctrine of equivalents has traditionally been applied in Czech patent law. According to the IP Office’s official guidelines, an element is usually considered equivalent if it is clear to a person skilled in the art that a substantially identical result is achieved by use as would otherwise be achieved by an element in the compared solution. IP Office case law goes further to say that the doctrine of equivalents can be applied where the relevant element of a patent claim is:

not the only element that makes the combination of elements of the patent claim different from the state of the art; and

a substantial element of the claim.

If the compared element fulfils the same function as the element of the patent claim (taking into account similar results), and if the substitution is obvious to the person skilled in the art (ie, the compared element is known at the date of publication of the patent), then the two elements can be considered equivalent.

Is it possible to obtain preliminary injunctions? If so, under what circumstances?

It is possible to obtain preliminary injunctions either before the main action begins or in the course of the proceedings. The court may issue a preliminary injunction if it is necessary temporarily to regulate the relations of parties or if enforcement of a decision is at risk. However, preliminary injunctions should not replace or anticipate the results of the main action and should not create an irreparable situation. Although this is not an explicit statutory requirement, the courts also consider the urgency of the matter and the likely harm caused to the parties.

The court must issue its decision within seven days of receiving an application for preliminary injunction. Preliminary injunctions are considered ex parte proceedings – defendants have little chance to defend against a preliminary injunction, other than by appeal, which has no suspensory effect. When filing an application for a preliminary injunction, plaintiffs must pay a deposit of Kr50,000 to cover potential damages caused by the preliminary injunction to the defendant. The courts may increase this deposit amount. Preliminary injunctions are automatically enforceable once served on the defendant.

How are issues around infringement and validity treated in your jurisdiction?

A bifurcated system exists in the Czech Republic. Infringement is dealt with by the courts, whereas validity is considered exclusively by the IP Office. One does not affect the other, although the courts tend to delay infringement proceedings until the IP Office has rendered a revocation decision.

Will courts consider decisions in cases involving similar issues from other jurisdictions?

This is highly unlikely. There may be an element of persuasive power, but the IP Office and the courts have always declared that they are not bound by decisions from other jurisdictions and decide based purely on the laws applicable in the Czech Republic (which nevertheless include EU law and European Court of Justice jurisprudence).

Damages and remediesCan the successful party obtain costs from the losing party?

In theory, the losing party should reimburse the costs of the winning party. This is true with respect to the recovery of court fees and some other official expenses, including the cost of evidence (eg, payment of a deposit to cover the costs of the court-appointed expert or the cost of a notarial record) or travel expenses. However, it is not usually possible to achieve a full (or sometimes even meaningful) reimbursement of legal costs. Czech courts award legal costs in line with a government decree based on the value/nature of the claim and the number of steps taken in the proceedings (eg, writing petitions, attending hearings and meeting with clients for longer than two hours). Where only a cease and desist obligation is sought from the court and where the proceedings involve only the minimum necessary steps, the reimbursement of legal costs can be as low as approximately Kr17,000.

What are the typical remedies granted to a successful plaintiff?

Typical remedies include cease and desist orders against the defendant (often by removal of the infringing goods from the market or destruction) and payment of damages, unjust enrichment or other compensation. Additional remedies include publication of the judgment and information about the origin and distribution channels of the infringing products.

How are damages awards calculated? Are punitive damages available?

Damages awards are calculated based on the actual amount of damages (which the plaintiff must prove) or based on a licence analogy (ie, the amount that the rights holder would have obtained if the right had been licenced). The default amount is at least double the usual licence fee. In the event that the defendant did not know and could not have known that its activity was infringing the rights of the plaintiff (ie, unintentional infringement), the lump sum will be at least the same amount as the licence fee.

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?

Czech courts can impose various obligations on defendants to stop or prevent infringement. Rather than a permanent injunction, this involves the application of negatory and restitution claims, which are part of the set of available remedies, together with satisfaction, compensation and information claims.

Timescale and costsHow long does it take to obtain a decision at first instance and is it possible to expedite this process?

First-instance decisions are typically issued within one to two years, although patent cases can sometimes take longer due to expert appointments and judges’ unwillingness to consider technically complicated matters. No formal procedure to expedite the proceedings exists.

How much should a litigant plan to pay to take a case through to a first-instance decision?

This depends on, among other things:

the complexity of the matter;

the area of industry;

the quality of representation;

the cost of evidence; and

whether documents must be translated into two languages (typically English and Czech).

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